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Flag an air cab?

What are the rights of passengers using air taxis, and what duties do carriers have when providing this service? These issues are explored by Paweł Mazur, an adwokat who is of counsel to Wardyński & Partners.

An “air taxi” is the most flexible way to fly, offering transportation closely matching the needs of the individual customer without following an airline’s fixed schedule of regular flights. This service is used so far almost exclusively by business travellers, for whom the high price is balanced by the independence and time savings.

But from a passenger rights perspective, do air taxi services provide adequate protection in the case of delayed or cancelled flights, compensation for lost baggage and the like? Regulation (EC) No. 261/2004 extended the protection offered to passengers on scheduled flights to include passengers on non-scheduled flights, and thus also customers of air taxis. This means that an air taxi passenger enjoys the same rights under EU law as passengers on scheduled flights. In the event of cancellation or significant delay of a flight, the passenger has a right to demand a refund or fly at another selected time. The air carrier need to provide the passenger care when waiting for the flight, including food, beverages, access to transit, and even lodging.

Regulation 261/2004 also requires the carrier to pay compensation in an amount that depends on the distance of the flight. If the loss exceeds the amount of compensation available under the regulation, the passenger may seek additional damages under general rules. However, the carrier can avoid liability for compensation if it informs the passenger of a flight cancellation far enough in advance (if less than 2 weeks, offering the passenger a new travel plan that allows the passenger to reach the destination at a similar time).

Under the Montreal Convention and the Warsaw Convention, a carrier has an obligation to pay compensation in the event of death or bodily injury to a passenger during a flight. The carrier can assert a lack of fault as a defence only in the event of a claim exceeding SDR 100,000. Compensation is also payable in the event of destruction, damage or loss of a passenger’s luggage. It should be stressed, however, that an air taxi passenger, like a passenger on a scheduled flight, cannot claim compensation if the flight could not be carried out because of extraordinary, unavoidable circumstances, such as adverse atmospheric conditions.

With liability of certified carriers established in this way, and a prohibition on contract terms less favourable to the passenger, flying by air taxi should present no more legal risk than taking a scheduled flight. However, these rules do not apply when the aircraft is rented from the carrier by a businessperson and piloted by himself or an employee or another passenger. In such cases the airline’s liability is limited to losses caused by defective equipment. Then the person hiring the plane is responsible for reaching the destination on time and in one piece.